NO.

C071887

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

SUSAN C. FERRIS,
Appellant,
v.
DAVID M. FERRIS,
Respondent.

Appeal From the Sacramento Superior Court

Case No. 98FL05615

Hon. Matthew Gary, Judge Presiding

________________________________________

APPELLANTS OPENING BRIEF

________________________________________

JAMES BROSNAHAN* (SBN 34555) WILLIAM KENNEDY (SBN 61701)

KEVIN A. CALIA (SBN 227406) STEPHEN GOLDBERG (SBN 173499)
DEVON EDWARDS (SBN 264833) LEGAL SERVICES OF
MORRISON & FOERSTER LLP NORTHERN CALIFORNIA
425 Market Street 512 12th Street
San Francisco, CA 94105-2482 Sacramento, CA 95814
Tel: 415.268.7000 Tel: 916.551.2150
Fax: 415.268.7522 Fax: 916.551.2195
JBrosnahan@mofo.com bkennedy@lsnc.net

Attorneys for Appellant

SUSAN C. FERRIS
 TABLE OF CONTENTS
Page

INTRODUCTION ........................................................................................ 1
STATEMENT OF FACTS ........................................................................... 1
A. Susan Is Disabled and Her Disability Hampers Her
Focus and Emotional Stability in Stressful Situations ........... 1
B. Susan and M Shared a Close Relationship ............................. 2
C. Susan and M had Serious Concerns About Davids
Behavior ................................................................................. 3
D. The Court Deprived Susan of Custody of M in
Hearings Where Susan Was Unrepresented ........................... 3
E. The Trial Court Accused Susan of Assisting in Ms
Disappearance and Deprived Susan of Her Parental
Rights Without Appointing Counsel for Susan...................... 5
F. The Court Allowed David to Send M to an Out-of-
State Lock-Down Facility ...................................................... 7
G. The Court Orders Susan to Pay Attorneys Fees for
Filing the Motion to Prevent David from Sending M
Out of State............................................................................. 9
H. Susan Had Difficulty Pursuing and Arguing Her Case
Without the Assistance of Counsel ...................................... 11
STANDARD OF REVIEW........................................................................ 12
STATEMENT OF APPEALABILITY ...................................................... 13
LEGAL ARGUMENT ............................................................................... 14
I. THE STATE DEPRIVED SUSAN OF ALL CUSTODY
AND CONTACT WITH HER DAUGHTER WITHOUT
DUE PROCESS OF LAW .............................................................. 15
A. Susans Private Interests in the Right to the Care,
Custody, and Contact with Her Child Are
Compelling and Fundamental ....................................... 18
B. The State Suspended Susans Parental Rights in
Proceedings Which Had a High Risk of Error ..................... 20
1. Child Custody Proceedings Have a High Risk
of Error When One Party is Unrepresented .............. 20
2. The Proceedings at Issue Were Complex,
Emotionally Charged, and Carried a High Risk
of Error ...................................................................... 23
3. An Attorney Would Have More Effectively
Prepared, Investigated, and Argued Susans
Case ........................................................................... 24
C. Susan Has a Protected Dignity Interest in Having
Counsel Appointed to Adequately Present Her Case........... 27

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE CJBNS.ORG

 TABLE OF CONTENTS
(continued)
Page

D.
The States Interests Also Weigh in Favor of
Appointing Counsel for Susan ............................................. 29
II. FEDERAL AND STATE LAWS PROTECTING PERSONS
WITH DISABILITIES GUARANTEE SUSAN THE RIGHT
TO COUNSEL IN THIS CASE ...................................................... 31
A. Susan Has a Qualifying Mental Disability ........................... 32
B. Susan Made a Reasonable Request for
Accommodation ................................................................... 34
C. The Court Was Obligated to Provide Auxiliary Aids
and Services.......................................................................... 34
D. Susan Was Excluded From Meaningfully Participating
in Her Hearing as Result of Her Disability .......................... 35
III. THE TRIAL COURTS $2,500 SANCTION WAS AN
ABUSE OF DISCRETION ............................................................. 36
A. Failure to Consider Whether a $2,500 Sanction Would
Impose an Undue Burden Was an Abuse of Discretion....... 36
B. Imposing a Sanction Which Would Impose an Undue
Burden Was an Abuse of Discretion .................................... 37
C. The Trial Court Had No Reasonable Justification to
Sanction Susan ..................................................................... 38
CONCLUSION .......................................................................................... 40

ii
 TABLE OF AUTHORITIES
Page(s)

CASES
Adoption of Baby Girl B.
(1999) 74 Cal.App.4th 43 .................................................................... 12
American Academy of Pediatrics v. Lungren
(1997) 16 Cal.4th 307 .......................................................................... 30
American Council of the Blind v. Paulson
(D.C. Cir. 2008) 525 F.3d 1256 ........................................................... 36
Appellate Defenders, Inc. v. Cheri S.
(1995) 35 Cal.App.4th 1819 ................................................................ 18
Biscaro v. Stern
(2010) 181 Cal.App.4th 702 .......................................................... 12, 36
Bultemeyer v. Ft. Wayne Community Schools
(7th Cir. 1996) 100 F.3d 1281 ............................................................. 34
Clark v. Orange County
(1998) 62 Cal.App.4th 576 .................................................................. 17
Colmenares v. Braemar Country Club, Inc.
(2003) 29 Cal. 4th 1019 ......................................................................... 3
County of Santa Clara v. Super. Ct.
2 Cal.App.4th 1686 (1992) .................................................................. 17
Cuiellette v. City of Los Angeles
(2011) 194 Cal.App.4th 757 ................................................................ 13
Ebersol v. Cowan
(1983) 35 Cal.3d 427, 439 ................................................................... 39
Elkins v. Super. Ct.
(2004) 121 Cal.App.4th 1371 ....................................................... passim
Enrique M. v. Angelina V.
(2007) 41 Cal.App.4th 1337 ................................................................ 14
Filip v. Bururenciu
(2005) 125 Cal.App.4th 825 ................................................................ 39
Franco-Gonzalez v. Holder
(C.D. Cal. 2013) 2013 WL 3674492 ............................................. 32, 35
Guardianship of Ethan S.
(1990) 221 Cal.App.3d 1403 ............................................................... 17

iii
 TABLE OF AUTHORITIES
(continued)
Page(s)
Henrietta D. v. Bloomberg
(2nd Cir. 2003) 331 F.3d 261 .................................................... 5, 35, 36
In re B. G. (1974)
11 Cal.3d 679 ....................................................................................... 18
In re Bryce C.
(1995) 12 Cal.4th 226 .......................................................................... 27
In re Emilye A.
(1992) 9 Cal.App.4th 1695 ........................................................... passim
In re Jacqueline H.
(1978) 21 Cal.3d 170 ..................................................................... 17, 19
In re Jay R.
(1983) 150 Cal.App.3d 251 ......................................................... passim
In re Malinda S.
(1990) 51 Cal.3d 368 ..................................................................... 16, 27
In re Marriage of Corona
(2009) 172 Cal.App.4th 1205 .............................................................. 36
In re Marriage of Dupre
(2005) 127 Cal.App.4th 1517 .............................................................. 14
In re Marriage of Petropoulos
(2001) 91 Cal.App.4th 161 .................................................................. 36
In re Marriage of Pollard
(1979) 97 Cal.App.3d 535 ................................................................... 37
In re Sade
(1996) 13 Cal.4th 952 ................................................................... passim
Jensen v. Wells Fargo Bank
(2000) 85 Cal.App.4th 245 ............................................................ 33, 35
Lassiter v. Dept. of Social Services
(1981) 452 U.S. 18. .............................................................................. 16
Moore v. Super. Ct.
(2010) 50 Cal.4th 802 .......................................................................... 16
Ohio v. Barron
(1997) 52 Cal.App.4th 62 .................................................................... 13
Parker v. Harbert
(2012) 212 Cal.App.4th 1172 ........................................................ 13, 38

iv
 TABLE OF AUTHORITIES
(continued)
Page(s)
Payne v. Super. Ct.
(1976) 17 Cal.3d. 908 .................................................................... 28, 31
People v. Allen
(2008) 44 Cal.4th 843 .................................................................... 15, 28
People v. Ramirez
(1979) 25 Cal.3d 260 ........................................................................... 16
Prillman v. United Air Lines, Inc. (1997)
(1997) 53 Cal.App.4th 935 .................................................................. 34
Salas v. Cortez
(1979) 24 Cal.3d 22 ...................................................................... passim
Scotch v. Art Institute of California
(2009) 173 Cal.App.4th 986 ............................................................... 34
Santosky v. Kramer
(1982) 455 U.S. 745 ............................................................................. 23
Turner v. Association of American Medical Colleges
(2008) 167 Cal.App.4th 1401 .............................................................. 13
CONSTITUTION AND STATUTES
Cal. Const. art. I, 7 .................................................................................. 15
California Code of Civil Procedure
904.1.................................................................................................. 14
906..................................................................................................... 14
California Family Code
271......................................................................................... 10, 36, 37
3040............................................................................................. 30, 31
3048................................................................................................... 25
3060................................................................................................... 25
3063................................................................................................... 25
7862................................................................................................... 19
7895................................................................................................... 18
California Government Code
11135..................................................................................... 32, 33, 36
12926................................................................................................. 33
California Welfare & Institutions Code
317..................................................................................................... 19
16000................................................................................................. 30

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE CJBNS.ORG

 TABLE OF AUTHORITIES
(continued)
Page(s)
42 United States Code
12102................................................................................................. 33
12132........................................................................................... 32, 36
OTHER AUTHORITIES
28 C.F.R.
35.104................................................................................................ 35
35.160................................................................................................ 35
Cal. Rules of Court
8.104..................................................................................................... 13
8.403..................................................................................................... 19
Bezdak, Silence in the Court: Participation and Subordination of
Poor Tenants Voices in the Legal Process (1992) 20 Hofstra L.
Rev. 533 ......................................................................................... 21, 22
Judicial Council of California Task Force on Self-Represented
Litigants, Statewide Action Plan for Serving Self-Represented
Litigants (2004) ............................................................................. 28, 31
Mnookin, Maccoby, Albiston & Depner, What Custodial
Arrangements are Parents Negotiating? , Divorce Reform at the
Crossroads (S. Sugarman edits. 1990) ................................................ 21
Seron, et al., The Impact of Legal Counsel on Outcomes for Poor
Tenants in New York Citys Housing Court: Results of a
Randomized Experiment (2001) 35 Law & Society Rev. 419 ............. 22

vi
 INTRODUCTION

This appeal challenges an order depriving Susan Ferris, an indigent

and disabled mother, of both custody and of all contact with her 14-year old
daughter, M, without affording the mother a right to court-appointed
counsel.

David Ferris, Ms father, who was represented by retained counsel,

persuaded the trial court to give him exclusive custody of M with the right
to unilaterally send her to an out-of-state boarding school and to enjoin the
mother from having any contact with the child. These orders were based on
the trial courts suspicion that Susan helped M hide from her father after M
ran away from her fathers home. The trial court did not appoint counsel to
Susan despite her repeated requests for an attorney and her stated difficulty
in handling this case without one.

Under the due process clause of the California Constitution, the

mother had a right to be represented by counsel in the proceedings leading
to these orders. Because no lawyer was provided, and because the court
ordered that the mother have no contact with her child, the orders should be
reversed.

STATEMENT OF FACTS

A. Susan Is Disabled and Her Disability Hampers Her Focus

and Emotional Stability in Stressful Situations

Susan suffers from Post-Traumatic Stress Syndrome (PTSD) related

to a rape in 2005 and a rock climbing accident in 2007. (ACT 3-11.) This
disability gives Susan situational depression and anxiety, mostly related to
custody and court issues around [her] daughter. (ACT 3.) It also results in
Susan having mild generalized depression. (ACT 4.) The Social

1
Security Administration awarded Susan disability payments based on the
injuries she sustained during the rock climbing accident in 2007, which are
her sole source of income. (ACT 7, 11; CT 202.) The Superior Court was
fully appraised about these disabilities. (ACT 3-11.)

After being put on notice about these disabilities, the lower court
witnessed her situational anxiety firsthand. Susan had difficulty juggling
her roles as advocate, witness, defendant, and mother during the
proceedings which led to the court issuing its no-contact order and
prolonging Susans separation from her daughter by permitting her father to
send her out of state. (See Part H., infra.)

B. Susan and M Shared a Close Relationship

The relationship between Susan and M had always been close. M

was born to Susan and her husband on September 19, 1997. (CT 64.)
Susan was married to Ms father, until they separated in 1998. (See CT
77.) The Sacramento Family Court entered a formal order dissolving the
marriage and ordering custody arrangements on May 5, 1999. (See CT
212.) Prior to November 4, 2011, M would stay with her mother part of the
week and with her father for the other part of the week. (CT 32, 62.) This
pre-existing custodial arrangement was approved by the court in March of
2011. (CT 62, 11.)

When away from her mother, M would miss her. (See, e.g., CT 55,
58, 107.) In an email from M to Susan that Susan sought to introduce in the
custody proceeding in November of 2011, mama I miss u so much, im
crying right now cause I miss u! I wanna see u, but I dont know when. I
want my mama!!! (CT 55.) Immediately before she ran away from her
father, M left a note for her mother stating, I miss you and love you
sooooooooo much. (CT 107.) Susan loves her daughter and misses her.

2
 C. Susan and M had Serious Concerns About Davids
Behavior

In late October of 2010, Susan became increasingly distressed by

complaints M voiced about the living situation with her father. (CT 31-34,
41.) M voiced two main complaints: she was upset by the bedroom and
sleeping situation at her fathers house and scared by his angry outbursts.
(CT 16-18.) These included throwing a table against a wall out of
frustration after attempting to tutor her in math. (CT 64.) At the time, M
told her mother that she did not feel safe [or] feel comfertable [sic] with
[her] dad. (CT 16.)

Ms concerns alarmed Susan because of her personal familiarity with

the violence that could accompany Davids angry outbursts. (See, e.g., CT
64-65, 70, 72-74.) In the past, David once hit Susan and pushed her onto
the floor, tearing the phone out the wall when Susan attempted to call the
police. (CT 72-74.) In another instance, Davids elderly mother had
sought an emergency protective order against him after he shook her and
hit her in the arm [with] a tin can. (CT 64, 70.)

Susan was also concerned because Ms father had M sleep in his bed
with him for a period of over five months. (CT 16-17; see CT 32-34.) M
was especially discomforted by this situation because her father would put
his hand down his pants in bed while they watched TV. (CT 16-17.)

D. The Court Deprived Susan of Custody of M in Hearings

Where Susan Was Unrepresented

Distressed, and scared for her daughter, Susan sought to obtain

primary physical custody. (CT 5.) She wanted to continue to share
parenting time and allow Davids visitation while these issues were worked
out. (CT 5.) In accordance with Ms preference, Susan first attempted to

3
resolve these issues without going to court. (CT 25.) David insisted on
going to court. (Ibid.) Here, his ability to retain an attorney tilted the
balance in his favor. David acknowledged that [M] indicated to [him] that
she really desired a 50/50 custody arrangement. [David] responded that it
was out of [his] hands and that the court would deal with the custody
issues. (Ibid.)

These custody issues were to be determined by the family court,

which had continuing jurisdiction over child custody issues after the
marriage was formally dissolved and custody was established in 1999. (See
CT 212 [judgment of dissolution was entered on May 5, 1999].) Susan
then did her best to state the issues to the court, without the assistance of an
attorney. (CT 4.) David had the assistance of an attorney throughout the
proceedings. (See, e.g., CT 9, 111-113, 117, 212.) This disparity proved to
be determinative.

On November 4, 2011 the court, instead of granting the custodial

arrangements Susan requested, issued temporary orders granting sole
physical custody and control of M to her father, and required that visitation
by the mother be supervised. (CT 23.) On November 28, 2011 the court
extended these temporary orders until January 9, 2012. (CT 81.) The
lower court made these determinations in a hearing in which it did not seek
or allow M to testify. (RT 12:19-20.) She was never allowed to explain
her discomfort with her father. (Ibid.) The lower court stated during a
December 2011 hearing: In hearings past Ms. Ferris has pled for me to
talk to [M]. Ive been rather reticent. (Ibid.)

Shortly thereafter, M ran away from her fathers custody, sending a

letter to her father again complaining about the sleeping situation and his
angry outbursts. (CT 91.) The letter stated, Dad, I am getting a

4
restraining order against you . . . Im done with you yelling at me, putting
me down and verbally assaulting me. And when you touched yourself
around me, that was when I told myself I didnt want this anymore. (RT
83:3-8.)

E. The Trial Court Accused Susan of Assisting in Ms

Disappearance and Deprived Susan of Her Parental
Rights Without Appointing Counsel for Susan

David and his attorney brought Susan into court, accusing her of
aiding in Ms disappearance and seeking an order depriving Susan of
contact with M. (CT 92, 95.) Again, Susan was unrepresented in the
December 9, 12, 13, 14, and 15, 2011 hearings. (CT 111-113, 116, 117.)
On December 13, Susan told the court that she perceived that her lack of
counsel impacted the fairness of the proceedings, saying when you dont
have an attorney as myself . . . the chances of having a fair trial, in my
experience, are less. (RT 81:19-21.) Without appointing Susan an
attorney, the court proceeded with a series of hearings to determine Ms
whereabouts, ultimately issued an order that deprived Susan of contact with
M, and permitted David to send M out of state. (RT 2:18-3:8, 32:2-15, CT
116, 212.)

Without an attorney to aid Susan, opposing counsel was able to

frame the evidence to Susans detriment and make the hearing one-sided.
For instance, the court asked if either parent believed that M was with
someone they knew; Susan said she did not believe M was with someone
Susan knew, but David brought up the possibility that M was staying
with his brother. (RT 77:12-19.) Instead of pursuing the matter with
David, the court pursued the matter with Susan, questioning her as to
whether M was with Davids brother. (RT 77:20-78:2.) The court declined
to ask even one follow-up question to David as to why he thought M might

5
be with his brother. (Ibid.) Instead of concluding that it was likely that M
was with a close relative, the court was convinced that M was at the
mercy of whatever underground is out there that hides children. (RT
13:3-4.) The courts continued references to the underground were
apparent references to an unspecified organization that hides run-away
children. (See, e.g., RT 13:10-16, 59:15-22; 60:21-61:8, 68:13-16, 76:1-
13.)

In another instance, Davids attorney introduced evidence that

Susan had visited websites, directly after the courts November 5th order,
concerning legal kidnapping and argued that these showed she
contemplated having her daughter kidnapped. (RT 78:18-24, 80:17-81:3.)
Susan explained that the term legal kidnapping was actually a reference
to circumstances where the legal system had taken away custody from a
parent, as the trial court had taken away custody from Susan in a trial she
thought was unfair due to her lack of an attorney. (RT 80:11-16, 81:4-22.)

The court ignored Susans explanation and asked the clerk for a copy
of the penal code. (RT 85:15-16.) Reading out its provisions, the court
stated that the person who keeps or withholds [M], holds or facilitates
the keeping of the child even if thats what the child wants and that such a
person was committing a crime. (RT 88:6-12.) The court stated that it
was a crime to assist or facilitate a child in the underground and that the
courts finding was that Susan was assisting the child in her runaway
and had committed this crime. (RT 87:14-22.) The court then ordered that
Susan return with M. (RT 89:17-19.) The court threatened Susan with
arrest and jail time if M was not returned. (RT 92:15-26.) When Susan
returned without M, the court ordered that Susan no longer had the right to
any contact with her daughter. (RT 109:19-23; CT 116, 117.) The court
contemplated putting Susan in jail for contempt of court for failing to return

6
her daughter, but decided it was not certain beyond a reasonable doubt
that Susan could comply with the courts order. (RT 113:17-24.) The
Superior Court indicated it would turn over the case to law enforcement and
the Child Abduction Unit if possible. (RT 114:22-25.)

After losing all contact with her daughter, Susan repeatedly asked
for an attorney, even going so far as attempting to be held in contempt so
that the court would grant her the request. The transcript of the December
15, 2011 hearing shows that Susan stated: Can you arrest me? . . . And
Id like my Mirandas or whatever, and I do want an attorney. (RT 131:20-
132:10.) The court then ordered Susan jailed for direct contempt of court
for five days, but ignored her request for an attorney. (RT 143:20-144:15;
CT 118.)

F. The Court Allowed David to Send M to an Out-of-State

Lock-Down Facility

The court extended the temporary orders giving sole custody to

David and depriving Susan of contact with her daughter on January 9,
2012. (CT 143.) M returned to Sacramento and began attending her
regular middle school in January. (CT 174, 205.) On March 23, 2012,
without consulting M, David arranged for personnel from a boarding
facility to go to the middle school she attended and take her directly to the
facility in Utah. (CT 206.) Davids attorney acknowledged that the
boarding facility was a treatment facility where the child is locked up
in. (RT 157:24-26.) The court even stated that the treatment was being
used to deprogram the child. (RT 164:4.) On April 4, 2012, Susan filed
a motion for M to be returned to California and for appointment of counsel
for M. (CT 172-74.) The hearing on this motion was set for May 9, 2012.

7
(CT 172.) On April 12, 2012, Susan filed a motion to consolidate the April
18, 2012 and May 9, 2012 hearings.1 (CT 193-196.)

The trial court told Susan that David could send M to Australia or
any place if he wanted, as he had sole custody. (RT 162:18-25.) The
court told her she has no parental rights and no contact with this child.
(RT 163:1-2.)

Susan could not afford an attorney while living on her meager social
security benefits. Susans sole income was the $1256 per month she
received in social security for her disability. (CT 201.) The Court then
added to Susans inability to afford an attorney on April 18, 2012. (Ibid.)
Following the courts no-contact order with her daughter, the court ordered
that Susan pay monthly child support of $920, including $660 to pay for the
out-of-state lock-down facility that Susan opposed. (Ibid.) This left Susan
with $336 per month in net income and made it difficult for her to afford
basic subsistence or housing, let alone afford an attorney. (See CT 194.)2

Again without the benefit of an attorney, Susan then went to the

Superior Court to request that the court appoint M an attorney and order
that David take her out of the treatment facility and return her to California.
(RT 168:1-5.) Susan again stated that she was having difficulty with the

1
Desperate to have her daughter returned to Sacramento and back to
her normal middle school, Susan hired an attorney to help her file the Order
to Show Cause to return M to California and to appoint M an attorney. (CT
172-174.) Susan was barely able to retain Mr. Frumpkin for the April
hearings, and could not afford his services for the May 9 hearing. (CT
194.) Susan filed a notice of substitution of counsel indicating she again
was without representation on April 30, 2012. (CT 209.)
2
Not only was she ordered to pay monthly child support of $920,
but the order also immediately created a $1700 child support arrearage.
The court made $260 per month retroactive for four months and an
additional $660 per month was made retroactive one month, totaling $1700.
(CT 201.)

8
case due to the lack of an attorney. (RT 172:14-21.) The court reiterated
that David had the right to make a determination of where to send M
because David had sole custody. (RT 168:11-13.) Susan stated that the
basis for the courts ruling, Davids custody of M, is an issue that needs to
be discussed. (RT 168:11-15.) Susan stated that she would like an appeal
of this custody finding. (RT 168:17-18.) The court asked Susan, Isnt the
reason Mr. Ferris has sole legal custody and sole physical custody with a
no-contact order because you assisted the child into the underground, and
the child disappeared? (RT 168:21-24.) Susan replied that there had
never been an underground, or facts or evidence of any kind. (RT
168:25-26.) The court had never made a formal finding of fact that Susan
had assisted her daughter in hiding from her father. (CT 111-113, 177,
212.) Nevertheless, the court denied Susans motion to prevent her father
from sending M out of state and denied Susans motion to have counsel
appointed for M. (RT 173:12-16; CT 212.)

Davids attorney then asked the court to swear Susan in, and Susan
was sworn. (RT 174:2-7.) Davids attorney questioned Susan about Ms
whereabouts when M had been missing. (RT 174:9-13.) Susan replied that
M had not been in her care. (RT 174:17.) Neither Susan nor the court
questioned David about whether he had discovered where M had been.
(RT 174:17-22.) Nor was he asked if M had been with his brotheras
David had earlier acknowledged was a possibility. (RT 77:18-19.)

G. The Court Orders Susan to Pay Attorneys Fees for Filing

the Motion to Prevent David from Sending M Out of State

Davids counsel sought attorneys fees from Susan for the motion
she filed to return M to California and appoint M counsel, stating that these
motions were frivolous motions that just create litigation. (RT 175:15-
16.)

9
 The record shows that Susan was not attempting to create
litigation at all. On March 14, 2012 the court set a hearing regarding child
support payments for April 18, 2012. (CT 167.) This hearing was set
before M was removed from school, on March 23, 2012. (CT 167, 172.)
On April 4, 2012, after M was removed from school and taken to Utah,
Susan filed the motion for M to be returned to California. (CT 172.) The
court set the hearing for this motion to be held on May 9, 2012. (Ibid.) On
April 12, 2012, Susan attempted to decrease litigation and filed a motion to
consolidate the April 18 hearing regarding child support with the May 9
hearing regarding Ms return. (CT 193-196.) This motion was marked No
Hearing. (CT 193.) Despite that, opposing counsel appeared. (RT 151:8-
17.) The trial court denied the consolidation request on April 12, 2012.
(CT 200.) At the April 18, 2012 hearing, counsel for David asked Susan to
drop the May 9 hearing. (RT 175:10-12.)

At the May 9, 2012 hearing, the trial court imposed $2,500 in

attorneys fees against Susan under Family Code Section 271. (RT 179:3-
6; CT 212.) The sanction is to be paid at $25 per month with the entire
amount becoming due immediately if the monthly payment is 10 days late.
(CT 212.)

During the May 9, 2012 hearing, the court asked Susan why she
should not be sanctioned for failing to drop the May 9 hearing. (RT
175:24-25.) In response, Susan stated she had spoken with the court clerk
who had told her that the May 9, 2012 motion could not be dropped from
the calendar because a temporary order was in place. (RT 176:1-4, 177:10-
21, 178:8-9, 178:17-18, 178:27-28.) In response to the question from the
court When you talked to [the court clerk], did you tell [the court clerk]
that you and [opposing counsel] had talked and there was an agreement to
drop it? Susan responded, No. (RT 177:28-178:3.) Despite this clear

10
statement, the court then stated that Susan was avoiding the direct
question and as a result the court assumed you did tell [the court clerk]
that [opposing counsel] agreed to drop it, and it turned out to be false . . .
(RT 178:19-24.) The trial court continued: . . . and I can tell from your
body language that you are not telling me the truth. (RT 178:25-26.)
Susan stated, I am not an attorney, I do not know the process, so I called
the clerk and asked her . . . and she gave me information. (RT 176:26-
177:1.)

During the May 9, 2012 hearing, the trial court did not inquire
whether Susan was financially able to pay the $2,500 sanctions or to pay
that sanction at $25 per month. Nor did the courts order make a finding
regarding whether Susan had the financial ability to pay the sanction. (CT
212; RT 179:3-6.)

The trial court had been informed several times about Susans
financial situation. In her April 12, 2012 declaration requesting
consolidation of hearings, she stated she had limited means and wanted to
avoid two hearings for that reason. (CT 194.) The April 18, 2012 child
support order had left her only $336 per month on which to live. (CT 201,
202.) The trial court was told that Susans income was $500 per month less
than her expenses. (RT 159:12-15.) The trial court acknowledged that the
child support order doesnt leave her [Susan] much to live on. (RT
164:10-11.)

H. Susan Had Difficulty Pursuing and Arguing Her Case

Without the Assistance of Counsel

Without the assistance of an attorney, Susan found the proceedings

to be difficult and did not have a full and fair opportunity to present the
issues to the court. (RT 81:19-21; 172:14-21.) Susans disability and

11
desperation to protect M and keep a close relationship with her daughter
clouded her judgment, her interactions with court, her ability to manage her
case, and her ability to clearly articulate her positions before the court. This
led to friction with the judge. (See, e.g., RT 133:2-16, 142:28-143:24.)
Susan interrupted the judge on numerous occasions, sometimes because she
was exasperated, and other times to get more information about the legal
terms the court used. (See, e.g., RT 105:25-106:4, 127:10-23, 128:20-
129:12, 131:6-16, 132:27-133:16, 133:26-28.) With her relationship with
her daughter at stake, it was understandable that Susan was emotional.
Nevertheless, this friction slowed down the proceedings, diverted the
courts focus, and undermined Susans advocacy and presentation of her
own testimony and evidence.

STANDARD OF REVIEW

Because the failure to appoint counsel for Susan before depriving

her of contact with M undermined the fundamental fairness of the hearing
in violation of the due process clause of the California Constitution, the
trial courts order is reversible per se. When a court infringes upon a right
which calls into question the very fairness of the trial or hearing itself the
error[] in civil cases remains reversible per se. (Biscaro v. Stern (2010)
181 Cal.App.4th 702, 704 [holding that a case where meaningful
assistance was not provided to a party with a mental disability, the denial
of this assistance is [a] structural error infecting a legal proceedings
reliability] (Biscaro); see also Adoption of Baby Girl B. (1999) 74
Cal.App.4th 43, 55.)

This Court reviews de novo whether the due process clause of the
California Constitution required the trial court to appoint counsel for Susan
before ordering that she have no contact with her daughter or issuing an

12
order that caused a prolonged separation between Susan and her daughter.
(Ohio v. Barron (1997) 52 Cal.App.4th 62, 67 [constitutional issues
reviewed de novo].)

This Court also reviews de novo whether California disability law

required the court to accommodate Susans disability by appointing counsel
to assist her in the proceedings below. It is undisputed that Susan is
disabled and that the court made no effort to accommodate this disability.
The issue of what California disability law requires a court to do to
accommodate a mental disability presents a question of statutory
interpretation that is reviewed de novo. (Cuiellette v. City of Los Angeles
(2011) 194 Cal.App.4th 757, 765 [determining how employment
discrimination law applied to undisputed facts reviewed de novo]; Turner v.
Association of American Medical Colleges (2008) 167 Cal.App.4th 1401,
1407 [determining that disabled persons accommodation request should be
reviewed de novo where relevant facts are undisputed].)

The lower courts award of attorneys fees of $2,500 as a sanction

against Susan is reviewed for abuse of discretion. (Parker v. Harbert
(2012) 212 Cal.App.4th 1172, 1177.) Factual findings made in connection
with a sanction are reviewed under the substantial evidence standard.
(Ibid.)

STATEMENT OF APPEALABILITY

This appeal is from the May 9, 2012 order of the Superior Court of
Sacramento County denying Appellants request for return of her daughter
to California, denying her request that counsel be appointed for her
daughter, and imposing $2,500 in sanctions against Susan. (CT 212.) A
notice of appeal was filed on August 7, 2012, within the time permitted by
California Rule of Court 8.104(a)(1)(C). (CT 217.)

13
 The May 9, 2012 order was a final determination of Davids right to
send M to an out-of-state boarding school and constitutes an appealable
order after judgment. (See Cal. Code Civ. Proc. 904.1(a)(2) [an appeal
may be taken from an order made after a judgment made appealable by
Section 904.1(a)(1)]; Enrique M. v. Angelina V. (2004) 121 Cal.App.4th
1371, 1377-1378 [holding order denying request for change in parenting
schedule was an appealable order after judgment].) Because the May 9
order was based on earlier, temporary orders depriving Susan of custody
and contact with M, those temporary orders and the related proceedings are
also reviewable in this appeal. (Cal. Code Civ. Proc. 906.)

The order imposing sanctions on Susan is also appealable because it

is not preliminary to some future judgment from which the order might be
appealed. (In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1524-
1525, review den. (2005) [denial of a partys request to impose post-
judgment sanctions appealable under California Code of Civil Procedure
Section 904.1(a)(2)].)

LEGAL ARGUMENT

California courts have recognized that the right to the custody,

contact, and care for ones child is a liberty interest protected by due
process. (Salas v. Cortez (1979) 24 Cal.3d 22 (Salas); In re Jay R. (1983)
150 Cal.App.3d 251, 259.) The state cannot deprive Susan of this
important liberty interest without due process.

Here, the trial court failed to provide the constitutionally required

due process because it failed to provide counsel to Susan in proceedings
which deprived her of her parental rights and significantly prolonged her
separation from her daughter. Susan respectfully requests this Court to
order the trial court to appoint her counsel. Susan also asks this court to

14
reverse the superior courts sanction of $2,500 for failing to consider that
this sanction would impose an undue financial burden on her.

I. THE STATE DEPRIVED SUSAN OF ALL CUSTODY AND

CONTACT WITH HER DAUGHTER WITHOUT DUE
PROCESS OF LAW

The California Constitution provides that a person may not be

deprived of life, liberty, or property without due process of law. (Cal.
Const. art. I, 7(a).) The guarantee of due process applies when the state
deprives a citizen of a significant liberty interest. (People v. Allen (2008)
44 Cal.4th 843, 862.) California courts have stated that due process is
implicated whenever there is a substantial possibility of the loss of custody
or of prolonged separation from a child. (In re Emilye A. (1992) 9
Cal.App.4th 1695, 1707 (Emilye A.) [internal citations omitted].) Due
process is implicated here. The State deprived Susan of custody and
contact with her daughter in November and December of 2011. On May 9,
the superior court relied on the orders depriving Susan of custody and
ordering that she have no contact with M to justify an order creating a
prolonged separation between mother and daughter by allowing David to
send M to an out-of-state facility where she was locked up. (RT 157:26,
173:12-16; CT 212.)

Where the guarantee of due process applies, California courts apply

a four-part balancing test to determine what process is due. (Allen, supra,
44 Cal.4th at p. 845.) The four factors are:
(1) the private interest that will be affected by the official action,
(2) the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards,
(3) the dignity interest in informing individuals of the nature,
grounds and consequences of the action and in enabling them to

15
 present their side of the story before a responsible governmental
official,3 and
(4) the governmental interest, including the function involved
and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
(In re Malinda S. (1990) 51 Cal.3d 368, 383 [internal quotations and
brackets omitted, paragraphs added]; see In re Sade (1996) 13 Cal.4th 952,
991, fn. 18 [noting that the dignity interest is an additional interest which
must be balanced when due process is implicated under article I, section 7
of the California Constitution].)4

Applying this test, California courts have found a constitutional right

to appointed counsel in civil proceedings where a parents fundamental
liberty interest in the companionship, care, custody, and control of his or
3
The dignity interest (also often referred to as the dignitary
interest) is a persons right to meaningfully participate in a proceeding
which could result in the loss of a protected liberty interest. (Moore v.
Super. Ct. (2010) 50 Cal.4th 802, 819.) In People v. Ramirez (1979) 25
Cal.3d 260, 268, the Court first articulated this interest, stating that when
an individual is subjected to deprivatory governmental action, he always
has a due process liberty interest both in a fair and unprejudiced decision-
making and in being treated with respect and dignity.
4
The due process clause of the California Constitution is more
protective than the due process clause of the United States Constitution.
Under federal law, a court weighs three factors: the private interests at
stake, the governments interest, and the risk that the procedures used will
lead to erroneous decisions and balances the net weight of these factors
against the presumption that there is a right to appointed counsel only
where the indigent, if he is unsuccessful, may lose his personal freedom.
(Lassiter v. Dept. of Social Services (1981) 452 U.S. 18, 31 (Lassiter).)
Under this test, an indigent parent may have a right to appointed counsel
where the parents interests were at their strongest, the States interest
were at their weakest, and the risks of error at their peak. (Lassiter, supra,
452 U.S. at p. 31.) California law is more protective in two critical ways.
First, under the California Constitution, a fourth factor must be considered:
the litigants dignity interest in meaningfully participating in the
proceedings. (See, e.g., In re Malinda S., supra, 51 Cal.3d at p. 383.)
Second, California courts do not presume that appointed counsel is
required only where physical liberty is at stake. (In re Jay R., supra, 150
Cal.App.3d at p. 262.)

16
her child is implicated. In Salas v. Cortez the California Supreme Court
held that indigent defendants had a constitutional right to appointed counsel
in civil proceedings brought to establish paternity obligations. (24 Cal.3d
at pp. 28-29.)5 The California Supreme Court has found that a parent has a
right to counsel when appealing an adverse ruling terminating parental
rights. (See In re Jacqueline H. (1978) 21 Cal.3d 170, 175.)

Other California courts have likewise recognized a constitutional

right to counsel in civil proceedings that implicated the fundamental liberty
interest in custody and companionship between parent and child. (In re Jay
R., supra, 150 Cal.App.3d at p. 260 [due process requires appointment of
counsel for indigent parents accused of neglect in stepparent adoption
proceedings]; County of Santa Clara v. Super. Ct. (1992) 2 Cal.App.4th
1686 [determining that defendant had a constitutional right to appointed
counsel in his child custody contempt hearing].)6

Here, the balance of the four factors weighs heavily in favor of

finding that Susan was entitled to have counsel appointed to represent her
before the trial court issued orders that deprived her of all contact with her
daughter and caused a prolonged separation from her daughter.

5
The Court in Salas applied a three-part test to balance the nature
and magnitude of the interests involved, the possible consequences
appellants face and the features which distinguish paternity proceedings
from other civil proceedings against the states interests. (Salas, supra, 24
Cal.3d at p. 27.)
6
A few California courts have declined to find a constitutional right
to counsel where the interests involved were not as fundamental as the
interest in maintaining the parent-child bond. (See, e.g., Clark v. Orange
County (1998) 62 Cal.App.4th 576 [proceedings regarding child support
payments reflect pecuniary interest]; Guardianship of Ethan S. (1990) 221
Cal.App.3d 1403 [no right to counsel for man seeking to retain presumptive
parenthood where the case affects the severance of a parent-child
relationship only in an abstract sense because at the time of suit the
presumptive parent did not claim to be the natural father and had no
existing, defacto parent relationship with the child].)

17
 A. Susans Private Interests in the Right to the Care,
Custody, and Contact with Her Child Are Compelling
and Fundamental

The private interests in the important relationship between parent

and child weigh heavily in favor of requiring that counsel be appointed for
an indigent and disabled parent before the state may deprive the parent of
contact with his or her children. California courts have recognized a
parents interest in the companionship, care, custody, and management of
his or her children as compelling, fundamental, and among the most
basic of civil rights . (Salas, supra, 24 Cal.3d at p. 28 [citations
omitted]; In re Jay R., supra, 150 Cal.App.3d at p. 259 citing In re B. G.
(1974) 11 Cal.3d 679, 688-689; In re Sade, supra, 13 Cal.4th at p. , 989.)
Courts have recognized that the parents interest in maintaining a normal
parent/child relationship is an extremely important interest and a
proceeding which seriously infringes on the parents ability to parent a
child for a substantial period of time . . . seriously implicates the same
important interest. (Emilye A., supra, 9 Cal.App.4th at p. 1708.) The trial
courts order that Susan have no contact with her daughter and its order
permitting M to be sent out of state resulted in a prolonged separation
between mother and daughter. A parents interest in avoiding this kind of
separation from his or her child is one of the strongest possible private
interests. There is no way for a parent to turn back the clock and regain the
time and experiences that are lost as a result of such state-ordered
separation of parent and child.

After the California Supreme Court recognized that a parent has the
right to counsel on an appeal from the termination of her parental rights, the
legislature codified this ruling. (Cal. Fam. Code 7895; Appellate
Defenders, Inc. v. Cheri S. (1995) 35 Cal.App.4th 1819 [examining the
legislative history of what is now Family Code Section 7895 and finding

18
that the legislature intended to codify In re Jacqueline H. (1978) 21 Cal.3d
170].) Many other California statutes explicitly provide counsel to parents
and children when custody is at issue. (See Cal. Fam. Code 7862
[providing right to counsel in termination proceedings]; Cal. Welf. & Inst.
Code 317 [providing right to counsel in dependency proceedings where a
parent might be deprived of the temporary custody of her child]; Cal. Rules
of Court 8.403 [providing right to counsel for litigants appealing
judgments dependency proceedings arising from the juvenile court].) The
California Supreme Court has stated that the family court [was] created to
protect children and to preserve and strengthen the childs family ties. (In
re Sade, supra, 13 Cal.4th at p. 959, fn. 1 [italics added, internal quotations
omitted].)

Appointing counsel for indigent parents whose right to contact their

child is at stake protects the same interests in preserving family ties that has
motivated the Supreme Court of California and the California legislature
find that parents have a right to counsel in termination and dependency
proceedings. The narrow class of indigent parents who are in a custody
proceeding and face a prolonged separation from, and loss of contact
with, their child also have a right to counsel in these proceedings. (See
Emilye A., supra, 9 Cal.App.4th at p. 1707.) When an indigent parent is in
danger or losing the right to have any contact with her child, a fundamental
private interest is implicated regardless of whether the proceeding is termed
a dependency, termination, or custody proceeding.

Susans private interests also included her interest in maintaining her

personal liberty. Courts have been particularly likely to find that a parents
due process rights to counsel have been infringed where, in addition to
facing the emotionally devastating potential loss of all of, or significant
aspects of, their relationship with their children, they face potential

19
findings that they have committed criminal and/or morally condemned
acts. (Emilye A., supra, 9 Cal.App.4th at p. 1709.) Here, the court
accused Susan of committing a crime and threatened to turn over the case to
law enforcement while also questioning her under oath about the
disappearance of her daughter. (RT 87:14-22, 89:17-18, 92:20-26, 114:22-
25.) These facts also weigh in favor of appointing counsel to assist Susan.

B. The State Suspended Susans Parental Rights in

Proceedings Which Had a High Risk of Error

The second factor in determining what process is duethe risk of

an erroneous deprivation and the probable value of additional procedural
safeguardsalso weighs heavily in favor of appointing counsel before the
state may deprive a parent of contact with her child. Failing to appoint
counsel to an indigent and mentally disabled parent substantially increases
the risk of an erroneous determination. When the consequences of an
erroneous determination could include a no-contact order that severs an
existing parental relationship, a court should appoint counsel to mitigate
this risk.

1. Child Custody Proceedings Have a High Risk of

Error When One Party is Unrepresented

The risk of error is high in child custody proceedings because these

proceedings are among the most difficult in the law. The difficulties stem
not only from the procedural complexities inherent in any adversarial
litigation proceeding, but also the intense, emotionally charged backdrop
against which child custody decisions are ordinarily made, as well as the
amorphous nature of the legal standards that govern in family law disputes.
(Emilye A, supra, 9 Cal.App.4th at p. 1709 [stating that few lay people are
equipped to respond to the legal complexity of [custody] proceedings,

20
especially when dealing with the emotionally devastating potential loss
of . . . their relationship with their children].)

The lack of an attorney impacts a litigants pursuit of his or her case

before arriving in a courtroom. Identifying and delineating the substantive
issues in a child custody trial is only the first challenge that self-represented
litigants face. The range of permissible factors in hearing to determine the
best interests of a child is practically infinite, and can require the
introduction of expert testimony, affidavits, school reports, or criminal
records relating to substance abuse or domestic violence. The procedural
rules for introducing this evidence in family court are complex and often
inaccessible to laymen. In Elkins v. Super. Ct. (2007) 41 Cal.4th 1337,
1345, the California Supreme Court commented on how difficult, if not
impossible, it is for self-represented litigants to learn and understand these
rules. Moreover, unrepresented litigants often fail to make sound strategic
decisions in framing, timing, and pursuing their cases before any hearing.
These are failures which, by their nature, do not make their way into the
court record.

Studies have shown that the assistance of an attorney makes a

significant difference in the outcome of child custody proceedings
especially when the opposing parent is represented by counsel. Professor
Robert H. Mnookin and other distinguished scholars published a study
showing that, unsurprisingly, there was clear correlation between
representation and the likelihood of a particular custody outcome:
[m]other physical custody was more common when only the woman had a
lawyer, father custody when only the man had a lawyer, and joint custody
when both were legally represented. (Mnookin, Maccoby, Albiston &
Depner, What Custodial Arrangements are Parents Negotiating?, Divorce

21
Reform at the Crossroads, 64 (S. Sugarman and H. Kay edits. 1990.))7
Mothers received physical custody in only 49 percent of the cases in which
only the father was represented by counsel, compared to 63 percent of cases
in which both parents were represented and 86 percent of the cases in which
only the mother had counsel. (Ibid.) If only one parent is represented by
counsel, the information that the ultimate decision-maker receives in order
to make an assessment of each parents custodial capabilities may be
significantly skewed, placing the unrepresented parent at a distinct
disadvantage in the hearing or negotiation process. As a result, a parent
who does not have the assistance of counsel will be at a decisive
disadvantage, thus significantly increasing the risks of an erroneous result.
(See Emilye A., supra, 9 Cal.App.4th at pp. 1709-10 [If the parent is
unrepresented and the county has legal counsel, the contrast between the
two sides, in many cases, would be so tilted in favor of the countys
position that the purpose of the adversarial proceeding, i.e., an accurate and
just decision, would not be obtainable].)

Even apart from the emotional impact of participating in proceedings

which threaten fundamental parental rights, few parents are capable of
performing the essential advocacy functions such a hearing requires. (In re
Jay R., supra, 150 Cal.App.3d at p. 263 [An uneducated indigent [parent]
can easily become overwhelmed by . . . a [dependency] proceeding [that
involves shifting legal standards and evidentiary issues] without the
assistance of counsel].) In light of the need to apply legal standards within

7
Other empirical studies have consistently shown that legal representation
makes a major difference in whether a party wins in cases decided by the
courts. (See, e.g., Bezdak, Silence in the Court: Participation and
Subordination of Poor Tenants Voices in the Legal Process (1992) 20
Hofstra L. Rev. 533; Seron, et al., The Impact of Legal Counsel on
Outcomes for Poor Tenants in New York Citys Housing Court: Results of a
Randomized Experiment (2001) 35 Law & Society Rev. 419.)

22
a formalized adjudicative process, appointment of counsel is the most
effective means of mitigating the risk of error in proceedings which might
result in the loss of parental rightsincluding the right to have any contact
with ones child.

The risk of error is also magnified in family law courts due to the
imprecise legal standards these courts use to make determinations
implicating parental rights. (Santosky v. Kramer (1982) 455 U.S. 745, 762
[holding that due process requires a family court to use a heightened
evidentiary standard in a hearing which may terminate parental rights,
noting that family courts must use imprecise substantive standards that
leave determinations unusually open to the subjective values of the judge
and these magnify the risk of erroneous factfinding].)

2. The Proceedings at Issue Were Complex,

Emotionally Charged, and Carried a High Risk of
Error

The proceedings in which the court ordered Susan to have no contact

with M and allowed David to send M out of state were emotionally charged
and complex. Concerned about her daughters sleeping arrangements and
Davids angry outbursts, Susan initiated the hearing in November to gain
primary custody, because, as David admitted, [M] indicated to [him] that
she really desired a 50/50 custody arrangement. (CT 25.) No transcript
was made of the November hearing, but the court later stated that Susan
had pled for [the court] to talk to [M], but the court decided against
inviting in testimony from the child. (RT 12:19-22.) At a hearing initiated
by Susan out of concern for her daughter, the court instead terminated what
custodial rights Susan had. (CT 23.) M then ran away from her father.
(CT 91.) This put Susan in a stressful situation: she was accused by
opposing counsel and by the court of assisting in the disappearance of her

23
own daughter (CT 95; RT 85:15-16, 174:9-13); she was threatened with jail
time for this disappearance (RT 92:15-26); the testimony that the court and
opposing counsel sought to elicit from her (but not from her ex-husband)
potentially could have resulted in criminal liability to herself (RT 31:22-
32:1, 77:12-78:2); she faced the possible loss of any contact and
relationship with her daughter; and finally, she believed that her ex-
husbands custody of their daughter endangered Ms emotional and
physical well-being. (CT 16-17.) Time after time during these
proceedings, Susan was forced to juggle multiple roles, first an advocate,
then a witness, and always a mother.

Overwhelmed, under stress, and under the effects of her mental

disability, Susan was unable to effectively argue her case. (See, e.g., RT
105:25-106:4, 127:10-23, 128:20-129:12, 131:6-16, 132:27-133:3, 133:26-
28.) Counsel for David was able to frame the hearing and the evidence to
Susans detriment. (RT 77:12-78:2, 78:18-23, 80:18-81:3.) After M had
returned, the court allowed counsel for David to put Susan under oath to
further question her. (RT 174:2-22.) Facing an experienced attorney under
these circumstances, Susan was unable to effectively present her side of the
case. The result was a one-sided hearing and a one-sided decision: no
custody or contact with her child, no parental rights in determining whether
M should be sent out of state. (CT 116, 117; RT 162:18-163:1, 164:4.)

3. An Attorney Would Have More Effectively

Prepared, Investigated, and Argued Susans Case

An attorney would have more effectively defended Susans right to

maintain custody and contact with her daughter. First, a good attorney
would have established what Susans objectives and motivations were, and
then tailored a litigation strategy to achieve those objectives.

24
 At the May 9, 2012 hearing, Susan requested that M not be moved to
the out-of-state lock-down facility. (CT 173-174.) Counsel could have
greatly aided in this effort. First, an attorney would have pointed out that,
because the custody order was a temporary order, the Superior Court was
required to enter an order restraining the person receiving custody from
removing the child from the state pending notice and a hearing on the order
seeking or modifying custody. (Cal. Fam. Code 3063.)8 Second,
counsel would have understood that Susans goals would be best served by
regaining joint custody, and might have made a motion explicitly seeking to
modify the custody order, instead of asking the judge to do this at the
hearing. (RT 168:11-15.) Finally, an attorney would have argued that a
$2,500 sanction imposed an undue burden on an indigent mother who was
already ordered to pay over 70% of her income as child support. (CT 201,
202.)

An attorney also may have been able to negotiate with Davids

counsel, and come to an agreement. Or, if the two parties could not come
to an amicable agreement, the attorney could have written a forceful brief in
favor of having the court appoint counsel for M, as well as arguing that
pulling M from school and sending her to a lock-down facility was not in
Ms best-interest. Such a motion would have been bolstered by the
applicable statutory law, caselaw, and admissible facts, none of which were
presented by Susan on May 9. (RT 166:1-174:22.)

8
The no-contact and custody orders were ex parte temporary
custody orders under Family Code Section 3060 et seq., as they were
temporary orders setting custody which were ordered in the absence of an
agreement between Susan and David regarding custody. No final orders
modifying custody have been entered. (See Cal. Fam. Code 3048
[requiring that final custody orders comply with certain form and notice
requirements].)

25
 The hearings in November and December of 2011 in which the court
severed Susans custody and contact with M would also have been
markedly different with counsel. First, counsel would have established
what Susans overall objectives were before Susan sought primary custody,
and tailored Susans ex parte motion to grant her sole custody in such a way
to avoid an order with the opposite result. (CT 23.) In the December
hearings, in which the court was determining where M was, an attorney for
Susan could have called the father as a witness, including cross-examining
him with regard to the statement that it was a possibility that M was with
his brother. (RT 77:18-19.)

The attorney might have been able to effectively argue that granting
David sole custody and depriving Susan of contact with M was not
consistent Ms best interests. Appointed counsel would have been able to
introduce Ms letter, Ms text messages, and call witnesses to establish that
it was in Ms best interests to continue to have a relationship with her
mother. (See, e.g., CT 16-18, 55, 62, 91, 107.) An attorney for Susan
could have deduced that, if Susan and Ms interests were aligned in M not
living with her father (as evidenced by her letter and her running away) that
the court might be better persuaded by an attorney appointed to represent
M.

The appointment of an attorney to represent Susan would have

avoided friction with the judge. An attorney may have counseled her
against attempting to disqualify the judge. (CT 82-85.) Susans decision to
attempt to disqualify the judge was unsound: foremost because it was an
unwelcome distraction from the merits of her case, and second because it
was procedurally and substantively defective. (RT 133:17-134:9; CT 152-
155.) An attorney in this case would have been an effective advocate for

26
Susan and would have saved hours of the courts time by better preparing,
investigating, and arguing the case.

Under these circumstances, the probable value of appointed counsel

in mitigating the risk that the trial court erroneously deprived Susan of her
parental rights and severed her relationship with M weighs in favor of
appointing her counsel. (In re Bryce C. (1995) 12 Cal.4th 226, 234
[Because of the fundamental importance to the parent and society of an
accurate determination whether to terminate parental rights, counsel should
be appointed whenever the appearance of counsel may reasonably affect the
ultimate decision].)

C. Susan Has a Protected Dignity Interest in Having Counsel

Appointed to Adequately Present Her Case

The third factor in the due process analysis requires the court to
determine whether the dignity interest in . . . enabling [individuals] to
present their side of the story before a responsible government official
warrants appointment of counsel. (In re Malinda S., supra, 51 Cal.3d at p.
383 [internal quotations and brackets omitted].) The Supreme Court has
struck down local court rules which infringe on this interest. In Elkins v.
Super. Ct., supra, 41 Cal.4th at p. 1367, the Court invalidated a local rule
which required litigants in family court to submit declarations in lieu of
testifying before the court. The Court stated that this rule deprived litigants
of the essential opportunity to tell their story and have their day in
court. (Ibid. [internal citations omitted].) Although the court invalidated
the local rule at issue, it noted that heavy family law caseloads, made all
the more difficult by the high percentage of self-represented litigants,
contributed to a statewide concern with court procedures that do not

27
 permit family law litigants to tell their story. (Id. at pp. 1367-1368.)9

The California Supreme Court has acknowledged that counsel can

serve as an effective means of guaranteeing an individuals dignity interest
under the due process clause of the California Constitution. (People v.
Allen, supra, 44 Cal.4th at p. 868.) Pro per litigants in family law courts
struggle to meaningfully participate in the proceedings due to lack of
education, unfamiliarity with legal rules and procedures, and overburdened
family court calendars. (Elkins v. Super. Ct., supra, 41 Cal.4th at p. 1367;
Judicial Council of California Task Force on Self-Represented Litigants,
Statewide Action Plan for Serving Self-Represented Litigants, at pp. 10-11
(Feb. 2004), available at www.courtinfo.ca.gov/reference/documents/
selfreplitsrept.pdf [public trust and confidence in the judicial process is
undermined when justice is delayed or appears to be completely
inaccessible to litigants who do not have access to legal help.).)

Susans dignity interest in having her story heard can only be

protected by appointed counsel, especially given her mental disabilities that
restrict [her] in-court comprehension and communication skills. (ACT
1.) When a disabled and indigent litigant cannot be provided meaningful
access to the courts without counsel, due process requires the appointment
of counsel. (See Payne v. Super. Ct. (1976) 17 Cal.3d. 908, 924 [holding
that denial of appointed counsel to an indigent prisoner in a civil case was
impermissible under the California Constitution where no other relief will
preserve his right of access to the courts].)

9
The court invalidated the local rule because it conflicted with
statutory provisions and declined to resolve the serious constitutional
questions because judicial restraint . . . counsels against rendering a
decision on constitutional grounds if a statutory basis for resolution exists.
(Elkins v. Super. Ct. 41 Cal.4th at p. 1357 [citation omitted].)

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 D. The States Interests Also Weigh in Favor of Appointing
Counsel for Susan

The final factor in determining what process is duethe

governmental interest in the benefits and burdens of additional procedural
safeguardsalso weighs in favor of finding that an indigent and disabled
parent has a right to counsel when her right to contact or have custody of
her child is at stake.

The government has a compelling interest making sure there is an

accurate determination of parental rights. That is a primary reason family
courts exist. (In re Sade, supra, 13 Cal.4th at p. 959, fn. 1.) When the
California Supreme Court granted a right to counsel to an indigent man
defending against allegations of paternity, it observed that [a]ppointment
of counsel for indigent defendants will make the fact-finding process in
paternity cases more accurate, thereby furthering the states legitimate
interests in securing support for dependent children. (Salas, supra, 24
Cal.3d at p. 33.) The states interest in the just and accurate determination
of parental rights has been called important and even compelling. (In re
Sade, supra, 13 Cal.4th at p. 989.)10

Protecting the states interest in having an accurate result depends on

an adversarial system that is not overwhelmingly tilted in favor of one
litigant. (See Part I.B, supra.) Here, the court made decisions about what
the childs best interests were in a hearing where the father and his lawyer
were only countered by a disabled mother struggling to represent herself
without counsel. (CT 11-113, 116, 117, 209, 212.) As a result of these

10
In addition to promoting the interests of the child and parent in a
just outcome, greater accuracy will also promote public trust and
confidence in the court system, a state interest the California Supreme
Court has recognized as a priority necessary to the maintenance of the
justice system. (Elkins v. Super. Ct., supra, 41 Cal.4th at p. 1367.)

29
one-sided proceedings, the court made dubious decisions regarding Ms
best interests. The court decided that it was in Ms best interest to be in the
sole custody of a father who had her share his bed, (CT 16-17) who
frightened her, (CT 64-65) and who eventually sent her away to an out-of-
state lock-down facility to deprogram her. (RT 164:4.).

The state also has a special and particularly compelling interest in

protecting the health and welfare of children. (In re Sade, supra, 13 Cal.4th
at p. 989 [characterizing this interest as urgent]; American Academy of
Pediatrics v. Lungren (1997) 16 Cal.4th 307, 342.) Where only one parent
has counsel, it is less likely that a court will come to an accurate conclusion
regarding the childs best interests. Appointment of counsel [to a parent
who lacks counsel] will not only advance substantial state interests, it
should serve the childs interest as well. (Salas, supra, 24 Cal. 3d 22 at p.
33.) M had a close relationship with her mother, and, like most children,
missed her when she was unable to see her. (CT 55.) Nevertheless,
without counsel Susan was unable to convince the court to hear testimony
from M, who was fourteen at the time, before determining whether Susan
should have custody of M. (RT 12:19-20.)

The states interests in the welfare of children generally align with a

parents interest in retaining the companionship, care, custody, and
management of the child. California statutory law clearly demonstrates a
strong state interest in the continued relationship between parent and child.
For instance, California Welfare & Institutions Code Section 16000 notes
that it is the intent of the legislature to preserve and strengthen a childs
family ties whenever possible . . . This preference is why, in custody
proceedings, the number one preference according to the best interest of
the child is to grant custody to both parents jointly, or to either parent.
(Cal. Fam. Code 3040(a).) Because continuing contact with both

30
parents is so important, a court must consider which parent is more likely
to allow the child frequent and continuing contact with the noncustodial
parent when determining custody. (Ibid., italics added.)

While the states interests in a just and accurate determination of

parental rights and in the welfare of children are compelling and support
appointing counsel for an indigent and disabled parent facing potential
separation for his or her child, the states interest in denying counsel to
[indigent parents] is largely financial. (Salas, supra, 24 Cal.3d at p. 33.)
Even with regard to that financial interest, the appointment of counsel can
create savings in court time otherwise spent repeatedly processing
inaccurate or incomplete paperwork, calendaring unnecessary hearings, and
dealing with repeated requests for legal advice made to judicial officers and
other court staff. (Judicial Council of California Task Force on Self-
Represented Litigants, Statewide Action Plan for Serving Self-Represented
Litigants, at p. 10.) Appointing counsel for the narrow class of indigent
parents who are in a custody proceeding and face a prolonged separation
from, and loss of contact with their child would be an insubstantial
financial burden on the state, and does not outweigh the other important
interests which weigh towards appointing counsel. (See Payne v. Super.
Ct., supra, 17 Cal.3d. at p. 920 [rejecting argument that providing counsel
would impose a heavy burden on the public fisc and questioning how
substantially state costs would be increased by providing counsel to a
narrow class of unrepresented civil litigants].)

II. FEDERAL AND STATE LAWS PROTECTING PERSONS

WITH DISABILITIES GUARANTEE SUSAN THE RIGHT TO
COUNSEL IN THIS CASE

California law guarantees full and equal access to the benefits of

state services. The family court is a state service and California is required
to provide disabled litigants the means to meaningfully participate in family

31
court proceedings. (See Franco-Gonzalez v. Holder (C.D. Cal. 2013) 2013
WL 3674492 at pp. *6, 21 (Franco-Gonzalez) [holding that mentally
disabled immigrant aliens facing detention proceedings must be appointed
an attorney to enable them to meaningfully participate in detention
proceedings].)

California disability law requires that state-funded programs must

not discriminate on the basis of a disability and largely incorporates the
standards set forth under the Americans with Disabilities Act (ADA).
(Gov. Code 11135 et seq.) Under California law, [n]o person in the
State of California shall, on the basis of . . . disability, be unlawfully denied
full and equal access to the benefits of state services, including court
hearings. (Gov. Code 11135(a).) Access to these services must comply
with both Section 202 of the ADA (including related federal regulations)
and with Californias disability laws; whichever law provides stronger
protections and prohibitions governs. (Gov. Code 11135(b).)

A public program or service violates the ADA (and therefore also

California law) if the litigant can show that:
(1) she is a qualified individual with a disability;
(2) she was either excluded from participation in or denied the
benefits of a public entitys services, programs, or activities, or was
otherwise discriminated against by the public entity; and
(3) such exclusion, denial of benefits, or discrimination was by
reason of [her] disability.
(42 U.S.C. 12132.)

A. Susan Has a Qualifying Mental Disability

Under the ADA and California law, a person with a mental disability
impacting her ability to think clearly is disabled. Under the ADA a

32
qualified individual with a disability includes anyone who has a physical
or mental impairment that substantially limits one or more of the major life
activities of such individual including thinking. (42 U.S.C. 12102.)
California law provides greater protections than federal law to persons with
only limited disabilities. Government Code Section 11135 incorporates the
definition of disability from Government Code Section 12926, so that a
person who has any mental or psychological disorder or
condition, . . . such as an emotional or mental illness . . . that limits a major
life activity is a person with a disability. While the ADA requires that the
disability substantially limits one or more major life activities, California
law only requires that it limits such an activity, a less stringent
requirement. (Colmenares v. Braemar Country Club, Inc. (2003) 29
Cal.4th 1019, 1031.) Post-Traumatic Stress Syndrome (PTSD) is a
qualifying mental disability. (Jensen v. Wells Fargo Bank (2000) 85
Cal.App.4th 245, 257.)

The trial court was aware that Susan had a qualifying mental
disability. (ACT 3-11.) Susan had previously submitted letters and
diagnostics from the clinical director at her treatment center stating that she
had a mental disability. Dr. Gerry Shea, the therapist who treats Susan
stated that Susan suffers from Post-Traumatic Stress Syndrome (PTSD)
due to a rape in 2005 and . . . [a] rock climbing accident in 2007. (ACT
3.) This disability gives Susan situational depression and anxiety, mostly
related to custody and court issues around [her] daughter. (Ibid.) The trial
court also noted that Susan was agitated and upset. (RT 133:2-3, 143:11-
144:15.) This was the manifestation of the mental disability that Susan had
disclosed to the court in her medical records.

33
 B. Susan Made a Reasonable Request for Accommodation

A person with a qualifying disability is not required to make an

explicit or formal request for accommodation. While a disabled person
must request some accommodation, the litigant is not required to speak any
magic words. (Scotch v. Art Institute of California (2009) 173
Cal.App.4th 986, 1013; Prillman v. United Air Lines, Inc. (1997) 53
Cal.App.4th 935, 934) Where the person initiating the request for
accommodation is mentally disabled, particular leeway is given regarding
the form of a request for accommodation. (Bultemeyer v. Ft. Wayne
Community Schools (7th Cir. 1996) 100 F.3d 1281, 1285 [employee
initiated a request for accommodation when employer was aware of his
mental disability and he stated that work at his position would be too
stressful].)

At least twice, Susan made it clear that she was having difficulty in
this case because she lacked an attorney. (RT 81:19-21; 172:14-21.) Susan
also requested an attorney at least twice. (RT 131:20-132:10; 144:5-6.)
These requests and statements, constituted a reasonable request for
accommodation because the court was on notice about Susans mental
disability, Susan explicitly and implicitly requested an attorney to help her,
and the appointment of an attorney was necessary to provide her with
meaningful access to the court.

C. The Court Was Obligated to Provide Auxiliary Aids and

Services

Because Susan has a mental disability that prevented her from

having meaningful access to court services without counsel, the court was
obligated to provide appointed counsel as an accommodation, as Susan had
requested. When considering a request of accommodation, a public
entity must consider available options and furnish appropriate auxiliary

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CALIFORNIA JUDICIAL BRANCH NEWS SERVICE CJBNS.ORG
aids and services where necessary (28 C.F.R. 35.160 (2003), giving
primary consideration to the requests of the disabled person. (28 C.F.R.
35.104 (2003).) Whether an accommodation is reasonable depends on
the individual circumstances of each case and requires a fact-specific,
individualized analysis of the individuals circumstances and the
accommodations that enable meaningful access to the program at issue.
(Franco-Gonzalez, supra, 2013 WL 3674492 at p. *6) The court did not
conduct any such analysis. The Superior Court neither appointed the
attorney that Susan requested nor engage[d] in an informal, interactive
process in order to attempt to identify a reasonable accommodation for
Susan. (Jensen, supra, 85 Cal.App.4th at p. 261.)

Providing legal representation is a reasonable accommodation for

persons with mental disabilities who lack attorneys. In Franco-Gonzalez,
supra, 2013 WL 3674492 at p. *6, the court explained that mentally
disabled litigants seek only the ability to meaningfully participate in the
. . . court process, including the rights to examine the evidence against the
[them], to present evidence on [their] own behalf, and to cross-examine
witnesses. . . . [The litigants] ability to exercise these rights is hindered by
their mental incompetency, and the provision of competent representation
able to navigate the proceedings is the only means by which they may
invoke those rights. (Ibid. [internal quotations and citations omitted,
italics added].) The court should have appointed Susan an attorney so that
she could meaningfully participate in proceedings implicating fundamental
rights to continued contact with her daughter.

D. Susan Was Excluded From Meaningfully Participating in

Her Hearing as Result of Her Disability

Susans disability noticeably impeded her ability to meaningfully

participate at her hearing. (Henrietta D. v. Bloomberg (2nd Cir. 2003) 331

35
F.3d 261, 277-278 [plaintiff need only show that her disability was a
substantial factor in impeding this participation]; American Council of
the Blind v. Paulson (D.C. Cir. 2008) 525 F.3d 1256, 1267.) The court
noted that she was agitated and upset, remarking on her frequent
interruptions and the general friction in the courtroom. (RT 133:2-3,
143:11-144:15.) Susans mental disability prevented her from focusing on
the many the accusations leveled at her by the fathers lawyer as well as the
inquiries and findings made by the trial court. (See, e.g., CT 13:3-4, 77:12-
78:2, 80:18-81:3, 88:6-12, 87:14-22, 174:4-13.) Susan was therefore
excluded from participation in, and unlawfully denied full and equal
access to the benefits of, the Superior Courts services: providing a
fundamentally fair hearing to determine custody issues. (42 U.S.C.
12132; Gov. Code 11135(b).) The May 9 order should therefore be
reversed. (See Biscaro, supra, 181 Cal.App.4th at p. 709 [reversing a case
where meaningful assistance was not provided to a party with a mental
disability].)

III. THE TRIAL COURTS $2,500 SANCTION WAS AN ABUSE

OF DISCRETION

A. Failure to Consider Whether a $2,500 Sanction Would

Impose an Undue Burden Was an Abuse of Discretion

The trial court was not permitted to order sanctions under Family
Code Section 271 that would impose an undue financial burden. (Cal. Fam.
Code 271(a); In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161,
180.) In determining undue financial burden, the trial court shall
consider the parties income, assets, and liabilities. (Cal. Fam. Code
271(a); In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.)
Here, there is nothing in the record that indicates the trial court considered
whether a sanction would impose an undue financial burden on Susan.

36
 B. Imposing a Sanction Which Would Impose an Undue
Burden Was an Abuse of Discretion

There was substantial evidence that sanctioning Susan would cause

her to suffer an undue financial burden. The trial court had previously
ordered Susan to pay $920 of her $1256 monthly income as child support,
leaving her with only $336 per month to live on. (CT 201, 202.) The April
18, 2012 order was also retroactive and had created a $1,700 child support
debt immediately owed by Susan. (CT 201.) On April 18, the court stated
I realize that [the $920 per month child support order] doesnt leave her
[Susan] much to live on. (RT 164:10-11.) However, the trial court did not
consider these facts when imposing the $2,500 sanction.

Although the trial court ordered that the $2,500 sanction would be
paid $25 per month, this sanction imposed an undue financial burden on
Susan. The trial judge had been informed that Susans monthly expenses
were $500 more than her income. (RT 159:12-15.) Twenty-five dollars per
month is nearly 7.5% of the $336 per month Susan had left after the child
support order. With $336 of income, $25 imposed a severe financial
burden that reduced Susans ability to pay rent and afford basic subsistence.
(See, e.g., CT 64, 194, 202.) Susan would have to pay $25 a month for
over eight years before her obligation would be fulfilled. A payment late
by a mere ten days would accelerate the order and make the entire amount
due. (CT 212; RT 179:3-6.) It is an abuse of discretion for a court to
impose such an obligation upon [a] destitute part[y] which will hang over
the obligor for many years. (In re Marriage of Pollard (1979) 97
Cal.App.3d 535, 539 [holding that an attorneys fees award of $200
(approximately $650 in 2013 dollars) was an abuse of discretion where
imposed on a destitute party].) The courts imposition of a sanction which
would hang over Susan for over eight years was an abuse of discretion.

37
 C. The Trial Court Had No Reasonable Justification to
Sanction Susan

The trial court imposed a $2,500 sanction on Susan for failing to

drop her motion to appoint minors counsel and restrain David from
moving M out of state. (CT 212; RT 174:26-175:23.) Family Code
Section 271 authorizes attorneys fees sanctions only for conduct that
increases litigation costs by flouting the policy of encouraging settlement
and cooperation. (Parker v. Harbert, supra, 212 Cal.App.4th at p. 1176.)
The lower court did not state its basis for the sanction. (See RT 174:26-
179:6.) However, opposing counsel had moved for sanction for filing
frivolous motions that created litigation. (RT 175:6-16.) The $2,500
sanction was the amount opposing counsel stated was incurred for fees for
the motion to return M to California. (RT 175:19-23.) For several reasons,
imposing this sanction was an abuse of discretion.

Susans testimony as to why she did not drop the May 9, 2012
hearing was uncontradicted. (RT 176:1-179:12.) Susan told the court
during the May 9, 2012 hearing that she spoke to the court clerk about
dropping the hearing but was told she could not do so because a temporary
order was in place. (RT 176:1-4, 177:10-21, 178:8-9, 178:17-18, 178:27-
28.) There was no testimony on the record from the court clerk or from any
other source to contradict Susans testimony about her conversation with
the court clerk. (RT 179:9-12.) It was an abuse of discretion to sanction
Susan for failing to drop a motion which the court clerk had informed her
could not be dropped. (Ibid.)

The trial court attempted to justify its disbelief of Susan in two ways.
First, the trial court stated Susan was avoiding the direct question and as
a result the court assumed you did tell [the court clerk] that [opposing
counsel] agreed to drop it, and it turned out to be false . . . . (RT

38
178:19-24.) However, the trial courts characterization misstates Susans
answers to the courts questions. The trial judge directly asked When you
talked to [the court clerk], did you tell [her] that you and [opposing
counsel] had talked and there was an agreement to drop it? and Susan
directly responded No. (RT 177:28-178:3.) Contrary to avoiding the
courts question, Susan directly answered it. The courts incorrect claim
that Susan was evasive should not be a reason to find her not credible.

Second, the trial court justified its disbelief, stating, . . . and I can
tell from your body language that you are not telling me the truth. (RT
178:25-26.) There is no basis in the record indicating that the trial judge
was able to tell truth from fiction by body language. While the trier of fact
is permitted to disbelieve even uncontradicted evidence, such evidence
cannot be arbitrarily disregarded. (Ebersol v. Cowan (1983) 35 Cal.3d 427,
439; Filip v. Bururenciu (2005) 125 Cal.App.4th 825, 836 [the trier of fact
may only reject the uncontradicted testimony of a witness if it does not act
arbitrarily and has a rational ground for doing so.] [citation omitted].) It
is arbitrary and without rational basis for the trial court to question Susans
claim based solely upon her body language when the court could have
directly asked the court clerk to verify or contradict Susans statement.
Imposing sanctions here constituted an abuse of discretion.

It was also an abuse of discretion to sanction Susan for failing to

drop a hearing she attempted to consolidate. Susan filed an application to
consolidate the April 18 hearing on Davids child support modification
motion with the May 9 hearing on the motion to return M to California.
(CT 193-196.) Susans attempt to save litigation costs by having motions
heard at one court appearance instead of two, rather than increase costs,
was rejected by the trial court. (CT 200.) The April 12, 2012 motion is

39
marked No Hearing. (CT 193.) Opposing counsels choice to appear
anyway should not be held against Susan.

Because the trial courts findings lacked reasonable justification,

because Susan attempted to decrease litigation costs by asking to combine
or cancel hearings, and because the sanction imposed an undue financial
burden, a reasonable judge would not have imposed the sanction against
her. Imposing this sanction was therefore an abuse of discretion and the
order regarding sanctions should be reversed.

CONCLUSION

Under the California Constitutions due process clause, Susan should

not have been deprived her of the fundamental right to the care, custody,
and contact with her child without first being appointed counsel to assist
her in the proceedings.

The proceedings leading to the May 9, 2012 order resulted in

Susans loss of custody of M, an order not to contact M, and an order
permitting David to send M out of state. Because the trial court failed to
appoint counsel before depriving Susan of her fundamental rights, the May
9, 2012 order should be reversed and the trial court should be instructed to
appoint counsel to assist Susan in further proceedings related to contact
with and custody of her daughter. Alternatively, this order should be
reversed because the court failed to appoint Susan an attorney as a
reasonable accommodation for her disability.

The order imposing $2,500 in attorneys fees should be reversed

because the court did not consider that this sanction would impose an undue
financial burden on Susan and because the court lacked reasonable
justification for imposing this sanction.

40
 Appellant respectfully requests this Court reverse the May 9, 2012
order and remand for further proceedings after counsel is appointed for
Susan.

Dated: September 16, 2013 MORRISON & FOERSTER LLP

By:
JAMES J. BROSNAHAN
Attorney for Appellant
SUSAN C. FERRIS

41
 CERTIFICATE OF COMPLIANCE

As required by rule 8.204(c)(1) of the California Rules of Court and

in reliance on the word count of the computer program used to prepare this
brief, counsel certifies that it was produced using 13 point Roman type and
consists of 12,183 words, including footnotes.

Dated: September 16, 2013 MORRISON & FOERSTER LLP

By:
JAMES J. BROSNAHAN
Attorney for Appellant
SUSAN C. FERRIS

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CALIFORNIA JUDICIAL BRANCH NEWS SERVICE CJBNS.ORG